America ratified the Constitution with the understanding that the federal government would wield limited, enumerated powers. This understanding was swiftly overturned.
Within a few decades, the commerce clause’s reach had extended to almost all commercial activities, the necessary and proper clause had morphed into the “elastic clause,” and the spending and taxing powers were interpreted to allow Congress to regulate areas beyond its constitutional scope. Had those involved in the ratification debates known that “limited, enumerated” powers would translate into boundless federal authority, they likely would have rejected the already contentious proposal.
Centuries later, the nation has become used to a federal government with few constitutional constraints, at least consistent and clearly enforced ones. Creative interpretations of the Constitution continue to expand federal authority.
Several examples illustrate this point. In NFIB v. Sebelius, the Supreme Court reinterpreted the Affordable Care Act so that a “mandate” was considered a “tax.” In Gundy v. United States, the court upheld a delegation of Congress’s legislative power to the attorney general by identifying a limiting “intelligible principle” in the broadly defined directive for the attorney general to “specify the applicability” of the Sex Offender Registration and Notification Act.
This is not an exhaustive list, but the conclusion is evident: Hundreds, if not thousands, of deviations from the constitutional order envisioned by the founders have accumulated, dismantling the notion of a federal system of government.
A glaring example of this constitutional drift is the Federal Trade Commission’s expansive regulatory agenda. A series of rulemaking proceedings highlights the FTC’s embrace of the enormous and, to the founding generation, inconceivable power that has been concentrated in our fourth branch of government.
The FTC’s recent rule banning noncompete agreements epitomizes its propensity to bypass constitutional safeguards to achieve specific policy objectives. This ban is expected to impact 30 million contracts, involving workers in vital industries. Regardless of whether the ban is sound policy, it bypasses how major economic and political issues should be addressed in our constitutional framework.
We learn that a bill becomes law through a deliberately challenging and inefficient legislative process. The founders believed that the deliberation, transparency, and accountability this process brought far outweighed the costs. However, the ban was subject to a much less rigorous process — led by unelected commissioners, overseen by unknown bureaucrats, and unnoticed by most of the public. Despite numerous constitutional issues with this process, those who support the policy objectives of the majority of FTC commissioners have vigorously defended the commission’s action.
In fact, the FTC’s efforts to expand its powers and test constitutional boundaries are just beginning. Observers expect that within weeks, the FTC will announce a commercial surveillance rule addressing many privacy- and data protection-related issues currently under congressional discussion. This move is especially concerning as the commission encroaches on Congress’s domain. The American Privacy Rights Act, which tackles many of the same topics as the FTC’s likely commercial surveillance rule and is now before our elected representatives, should not have to contend for attention with the FTC’s initiative.
Our constitutional order can only stray so far from its foundations of liberty, popular sovereignty, and federalism before becoming unrecognizable and unsustainable. While the FTC’s priorities and policy views may be commendable in isolation, adherence to constitutional processes and principles must take precedence.
The FTC, and indeed any agency, should adopt a stance of regulatory humility: recognizing that any administrative agency is a creation of Congress and merely one part of a larger constitutional framework that relies on process to protect the liberty of all. This approach may not be efficient, but it aligns with the design and ratification of our Constitution. Furthermore, it is how the main proponents of the FTC originally conceived of the agency.
As Chairwoman Lina Khan highlighted in the FTC’s annual report, President Woodrow Wilson supported the FTC partly because “the businessmen of the country desire the advice, the definite guidance and information which can be supplied by an administrative body, an interstate trade commission.” What businesses do not desire, and our Constitution does not permit, is an FTC or any agency that usurps the power of Congress and, by extension, the power of the people.
Kevin Frazier is an assistant professor at St. Thomas University College of Law.
